Calling for whistleblowing is not a crime: the case of the German peace activist

WIN is pleased to highlight the case of peace activist Hermann Theisen where the Court applied the provisions of the EU directive on trade secrets to acquit Mr. Theisen of criminal charges.

Mr. Theisen’s case is an important contribution to the ongoing debates surrounding whistleblower protection in Germany. More broadly, though, this case is a landmark, setting the standard of how the trade secrets directive can be used as a conduit for whistleblower protection – a surprising and welcome turnaround for legislation that has a less than favourable reputation amongst many working to support and defend whistleblowers in the EU.

We are grateful to The Society for Civil Rights (GFF) for providing the summary of this case reproduced below.

In 2018, several lower courts in Germany convicted peace activist Hermann Theisen for calling on employees of weapons manufacturers to expose the illegal activities of their employers. The Society for Civil Rights (GFF) supported Mr. Theisen in his appeal procedures to get these courts to recognise that neither whistleblowing in the public interest nor the call for it are criminal offences.

On 16 January 2019, the Munich District Court became the first court to acquit Mr. Theisen on these charges.
Hermann Theisen is not a whistleblower – but he wants to encourage others to blow the whistle. To fight illegal arms exports, he regularly hands out leaflets to the employees of weapons manufacturers close to their company premises. In these leaflets, he asks employees to consider blowing the whistle on illegal activities of their employers, such as violations of export restrictions. The leaflets also describe the legal risks that whistleblowers face.

The leaflets make clear that Mr. Theisen’s calls are not directed against legal business activities, but against illegal arms exports. Nevertheless, in 2018, three lower courts in different parts of Germany convicted Mr. Theisen of having “publicly incited to disclose trade and industrial secrets” and fined him for it.

The convictions do not only affect Mr. Theisen personally, but also intimidate potential whistleblowers.
GFF found these judgments legally questionable in several regards – most significantly, the behaviour which Mr. Theisen allegedly incited is by no means a criminal offence. By disclosing illegal business activities, whistleblowers contribute to the investigation of criminal offences. This is reflected in European law; according to Art. 5 of the EU directive 2016/943 on trade secrets, disclosing information on illegal activities cannot be punished.

On 16 January 2019, the Munich District Court, to which Mr. Theisen had appealed with GFF’s support, took the same view and acquitted him of the charge against him.

This is the first time the EU directive on trade secrets has been applied by a German court and it is a milestone for the protection of whistleblowers in Germany. The German judiciary must recognise the important function whistleblowing has in a democracy and that whistleblowers need to be protected from (rather than intimidated by) prosecution. GFF will continue to support Mr. Theisen in order to obtain an acquittal in his two other appeal proceedings.

12th February 2019